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Richard Posner, the federal judge who threw out the entire Apple v. Motorola patent battle in June, has penned a new blog post complaining about the proliferation of patents. "I am concerned that both patent and copyright protection, though particularly the former, may be excessive," Posner wrote on Sunday.

The problem of excessive patent protection is at present best illustrated by the software industry. This is a progressive, dynamic industry rife with invention. But the conditions that make patent protection essential in the pharmaceutical industry are absent. Nowadays most software innovation is incremental, created by teams of software engineers at modest cost, and also ephemeral—most software inventions are quickly superseded. Software innovation tends to be piecemeal—not entire devices, but components, so that a software device (a cellphone, a tablet, a laptop, etc.) may have tens of thousands, even hundreds of thousands, of separate components (bits of software code or bits of hardware), each one arguably patentable. The result is huge patent thickets, creating rich opportunities for trying to hamstring competitors by suing for infringement—and also for infringing, and then challenging the validity of the patent when the patentee sues you.

On the copyright front, Posner sees two major problems. One is excessive copyright terms and the resulting "orphan works" problem. "Apart from the fact that the present value of income received so far in the future is negligible," he writes, "obtaining copyright licenses on very old works is difficult because not only is the author in all likelihood dead, but his heirs or other owners of the copyright may be difficult or even impossible to identify or find."

Posner also called for broader fair use rights. "The boundaries of fair use are ill defined, and copyright owners try to narrow them as much as possible, insisting for example that even minute excerpts from a film cannot be reproduced without a license." That's a problem, he argues, because "intellectual creativity in fact if not in legend is rarely a matter of creation ex nihilo; it is much more often incremental improvement on existing, often copyrighted, work, so that a narrow interpretation of fair use can have very damaging effects on creativity."

"The need for reform is less acute in copyright than in patent law," Posner concludes, "but it is sufficiently acute to warrant serious attention from Congress and the courts."

An influential loose cannon

Posner is not a typical judge. While most judges mostly keep their opinions to themselves when they're not on the bench, Posner is a prolific academic and public intellectual. He is regarded as a founder of the law and economics movement, which brings economic analysis to bear on legal doctrines. He has written numerous books, and he shares a blog with fellow University of Chicago scholar (and Nobel prize-winning economist) Gary Becker.

And Posner's seat on the Seventh Circuit Court of Appeals doesn't give him a direct role in shaping patent policy because (as we discussed yesterday) the Federal Circuit Court of Appeals has exclusive jurisdiction over patent appeals. Posner was able to hear the Apple v. Motorola case because he was temporarily sitting in as a trial judge. But his rulings will be reviewed, and quite possibly overturned, by the patent-friendly judges of the Federal Circuit.

But while Posner doesn't have the power to directly change patent law, he is widely known and respected both in academia and the judiciary. So his views are likely to have an impact on how policymakers—perhaps including Supreme Court justices—view patent law and policy.

The best singular example to argue excessive copyright that comes to mind is that the MLK "I have a dream" speech is not in the public domain. It was, after all, a PUBLIC speech in the first place, delivered in a public place through publicly shared airspace to many thousands of people.

If we're going to allow the MLK estate to bully everyone with copyright, I think we should be demanding royalties for the rights-of-way to use public land and airspace to deliver the speech in the first place.

The only way to ensure you do not clog the flow of innovation and technology is to deny the exclusive nature of copy right and Intellectual property.

You make something, that's all well and good but there are 3 outcomes of it trickling out to the world.

One is directly for profit, sold by the "owner" to another for profit and setup poorly thought out rules and laws to make it harder to make money off anything all of which we have so many middle men one wonders who is really making money.

The next process bypasses the "owner" altogether and is disseminated illicitly for profit at worst, just to spread information, innovation and technology at best.

And then you have the last more smaller sect unprofitable non revenue generating who just share info and data because its the right thing to do.

With that said its time, much like the anthem of free the pipes of data land lines WE are going to have to fight and force them to take away the cold iron grasp they have on exclusivity.

I do not care what it is IP or CP if its made and you are unable to buy the rights to resell it, then you should have a Wryte of Intellectual Profit Right, you automatically give up 60% of all profit generated from the CP/IP item"s" in question. But you can move innovation and technology forward.

This needs to be a default way to do things in copy right law as well as limit non commercial use(making more than 5K a year from the item"s" in question) to a fine of 100$.

If you live in a State with the ability to write in candidates, by all means feel free ... you are not compelled to vote only for the choice in two evils who cling to false party platform ideology for fear of the greater evil taking over.

Somehow I first read this as "_Jury_ decries...", and was like "Woohoo!".

Then I realized it said judge, and thought "Unfortunately, it's just another article about Posner." :\ I agree with the guy, but he's one voice against the collective. ("We are patent holders. Your intellectual property will be assimilated. Resistance is useless.")

I imagine Richard Posner as having a tattoo of the word "Facts" on the edge of his right hand that he goes around judo chopping everything with. This is simply because I'm skeptical that federal judges would ever want to have a written record of not being in someone's pocket.

He seems pretty level-headed. Certainly opinionated, but I like his dissatisfaction with the current status of IP law. At the very least, it's worthy of taking a hard look at it and its implications.

It's pretty much the way I've been looking at it for a while. I see the validity and place for patents (after all, they didn't cause a fuss for over 100 years...), but also see that the software market is far different to anything the original lawmakers intended and recent changes have been misguided (and in some cases, against previous rulings). Software is, like Posner says, pretty ephemeral. And with the massive spike in unimaginably powerful computers everywhere, software is also ubiquitous. There are certain techniques and certain tools that you just can't not use for some problems, the alternatives just won't work. It would be like patenting a screw, then suing anybody that built something with those screws. Imagine if the quadtree was patented, 2D graphics would be set back by decades, similarly a patent-encumbered octtree would have held back the 3D graphics industry.

The evidence that software doesn't need much patent protection is evident in the fact there not only exists an open-source movement, but it was effectively started by the software sector.

Open source is massively successful, due the fact that creation of software requires no resources other than a computer and time. As a programmer, I consider what I do to be as much art as engineering. There is a creative aspect, and I find the act of producing the work enjoyable. I don't want people copying my work and passing it off as their own, but that is what copyright is for.

Patents don't work well for software because software doesn't need it, not because patents are broken. My car isn't broken because it doesn't work well as a boat, it just isn't suited to that purpose.

"I've become less conservative since the Republican Party started becoming goofy."

That's funny, and I think many rational people who have been Republicans in the past think the same way. The Republican party is on a downwards spiral if they keep the insanity going on and let the same kind of people at the top and running in elections.

"I've become less conservative since the Republican Party started becoming goofy."

But then the same is true of the Democratic Party.

Are you saying that the Democratic Party became less conservative when the Republican Party started becoming goofy? I'm not sure that's right...

If anything the Democratic party is more conservative because of the Republicans. They run to the right, so the Dems move right because they now look more liberal than tree-hugging nudist communists. There is no left wing in the US, just right-ish and far-right.

@Bob.Brown: Did you read this?http://arstechnica.com/tech-policy/2012 ... prior-art/— Looks to me like the USPTO is admitting defeat to the patent-obfuscating lawyers; and palming this job off on the rest of us... I anticipate they will still continue paying their patent examiners by number of cases closed, and that the results of this policy will continue to be totally predictable (i.e., a much higher proportion of US patent applications being granted than are granted in Europe or Japan).

If anything the Democratic party is more conservative because of the Republicans. They run to the right, so the Dems move right because they now look more liberal than tree-hugging nudist communists. There is no left wing in the US, just right-ish and far-right.

Relax bro. There are still plenty of "socialist" items on the Democratic agenda.

If you live in a State with the ability to write in candidates, by all means feel free ... you are not compelled to vote only for the choice in two evils who cling to false party platform ideology for fear of the greater evil taking over.

Intellectual property is an oxymoron. Ideas belong to the commons. Patent law says so. Copyright law says so. Patent and copyright are privileges, not Rights. I have the Right to copy. Patent and copyright infringe on my Right for the benefit of society, not individuals, not businesses. Since society is not benefiting from them, it's time to get rid of them, completely. No more patents; no more copyright.

Orphaned works are significant for people studying computer history. Most historically important software programs from the 1980s are still under copyright, but have been totally abandoned. Historical research is actually illegal, since the only way to get these programs is to violate copyright law. Most software companies which existed in the 1980s are kaput, and there is no way to get any sort of permission. Companies that still exist from that era aren't what they were back then, and usually no one there even remembers their software. Getting permission is as close to impossible as it can be. SImilarly, some software is still owned and maintained by a current company, but the current version is nothing like the 1980s version and the company which now owns the copyright usually does not respond to requests for researchers. Yet all I have to do is snag a copy of the software to run it in a DOS emulator. This is violating the law. Historical research is illegal, because there is no copyright exemption for it.

Case in point, Borland began releasing some of their historically important software several years ago into the public domain. Unfortunately, they just stopped cold before they really even started. Today, Turbo C 1.0 and Turbo Pascal 4 were never released, and the only way to get copies of these are to violate copyright law. (Borland got sold or something right when it started this effort.)

(Yes, it is possible in some cases to track down the original disks, which usually have insane, outrageous prices for obsolete software. Plus, do you have a computer with a 5.25-inch floppy drive? I don't. Do you have a computer with a floppy drive at all? I don't. I should have saved the floppy drive from that old Packard Bell, I guess!)

If you live in a State with the ability to write in candidates, by all means feel free ... you are not compelled to vote only for the choice in two evils who cling to false party platform ideology for fear of the greater evil taking over.

So what do you say guys? Write him in? I'll do it.

considering i dont know how he feels about anything but patent law, im not going to write him in.

If you live in a State with the ability to write in candidates, by all means feel free ... you are not compelled to vote only for the choice in two evils who cling to false party platform ideology for fear of the greater evil taking over.

So what do you say guys? Write him in? I'll do it.

considering i dont know how he feels about anything but patent law, im not going to write him in.

You could look at his rulings. They could point to views on many subjects - after all, he doesn't normally handle patent cases.

If you live in a State with the ability to write in candidates, by all means feel free ... you are not compelled to vote only for the choice in two evils who cling to false party platform ideology for fear of the greater evil taking over.

So what do you say guys? Write him in? I'll do it.

considering i dont know how he feels about anything but patent law, im not going to write him in.

You could look at his rulings. They could point to views on many subjects - after all, he doesn't normally handle patent cases.

... a software device (a cellphone, a tablet, a laptop, etc.) may have tens of thousands, even hundreds of thousands, of separate components (bits of software code or bits of hardware), each one arguably patentable. The result is huge patent thickets...

This ^^^

The current patent system simply does not work for software, and in particular smartphones. As much as I despise the current patent lawsuit fog, I'm not completely convinced they should be dumped everywhere. But for software and devices largely defined by the software they run, patents need to be thrown out entirely.

... a software device (a cellphone, a tablet, a laptop, etc.) may have tens of thousands, even hundreds of thousands, of separate components (bits of software code or bits of hardware), each one arguably patentable. The result is huge patent thickets...

This ^^^

The current patent system simply does not work for software, and in particular smartphones. As much as I despise the current patent lawsuit fog, I'm not completely convinced they should be dumped everywhere. But for software and devices largely defined by the software they run, patents need to be thrown out entirely.

Exactly. They're still fairly important for pharmaceuticals because of the time to market and the cost getting there. But even for normal hardware widgets at this point you can go from R&D to market in a year.

My solution, eliminate patents and do protection of pharmaceuticals within the FDA.

If your accusation is that I'm "biased" in favor of making patent law less favorable to patent holders, I'm guilty as charged.

My argument isn't that your bias is the particular issue. Though, I wonder if you misspeak in saying that you want to make patent law less favorable to patent [i]holders[i]. Perhaps less favorable to applicants? I find the prospect of limiting patent rights [i]ex post facto[i] to those already granted patents to be more than I can stomach.

My larger point is that the patent coverage on Ars as a whole is anti-patentee, and caters toward the overly simplistic, and commonly held belief that "all software patents are bad," namely because that is the view held by a vast majority of the readership. I believe that the issue is much more complex, and the treatment of the issue could use some more in-depth coverage.

As an example, consider the question of how we would have cellular wireless standards, video codecs, and similar forms of innovation without patents and patent pools. I submit to you that we simply would not have it.

My larger point is that the patent coverage on Ars as a whole is anti-patentee, and caters toward the overly simplistic, and commonly held belief that "all software patents are bad," namely because that is the view held by a vast majority of the readership. I believe that the issue is much more complex, and the treatment of the issue could use some more in-depth coverage.

As an example, consider the question of how we would have cellular wireless standards, video codecs, and similar forms of innovation without patents and patent pools. I submit to you that we simply would not have it.

The software patent issue is not complex. The way software works is completely incompatible with the concept of a patent. Full stop. It is however completely able to be copyrighted, and I would be fine with it following those rules as it does now - the copyright debate is a different beast and nowhere near as broken.

As for video codecs and wireless. Both would exist without copyright, that is a ridiculous assertion. I would submit we'd actually be further along in wireless technology and video compression without it.

My larger point is that the patent coverage on Ars as a whole is anti-patentee, and caters toward the overly simplistic, and commonly held belief that "all software patents are bad," namely because that is the view held by a vast majority of the readership. I believe that the issue is much more complex, and the treatment of the issue could use some more in-depth coverage.

As an example, consider the question of how we would have cellular wireless standards, video codecs, and similar forms of innovation without patents and patent pools. I submit to you that we simply would not have it.

The software patent issue is not complex. The way software works is completely incompatible with the concept of a patent. Full stop. It is however completely able to be copyrighted, and I would be fine with it following those rules as it does now - the copyright debate is a different beast and nowhere near as broken.

As for video codecs and wireless. Both would exist without copyright, that is a ridiculous assertion. I would submit we'd actually be further along in wireless technology and video compression without it.

What, pray tell, makes software completely incompatible with the concept of a patent. If I made a machine with gears and the like you would say that is patentable, but once it becomes software, it is somehow unpatentable?

Regarding video codecs and wireless, I said they would not be as far along without patent, not copyright. These are not the same. As for the merits of your argument, I can say without a doubt that the licensing revenue from patent pools makes evolution in these technologies possible. Show me who's going to do the R&D without that revenue.

Also, as for your proposed copyright solution, keep in mind that NO piece of software EVER is out of copyright, due to the perpetual extension of copyright terms. If you think patent thickets are bad, think about copyrighted software thickets, which would include all pieces of software ever written.

My larger point is that the patent coverage on Ars as a whole is anti-patentee, and caters toward the overly simplistic, and commonly held belief that "all software patents are bad," namely because that is the view held by a vast majority of the readership. I believe that the issue is much more complex, and the treatment of the issue could use some more in-depth coverage.

As an example, consider the question of how we would have cellular wireless standards, video codecs, and similar forms of innovation without patents and patent pools. I submit to you that we simply would not have it.

The software patent issue is not complex. The way software works is completely incompatible with the concept of a patent. Full stop. It is however completely able to be copyrighted, and I would be fine with it following those rules as it does now - the copyright debate is a different beast and nowhere near as broken.

As for video codecs and wireless. Both would exist without copyright, that is a ridiculous assertion. I would submit we'd actually be further along in wireless technology and video compression without it.

What, pray tell, makes software completely incompatible with the concept of a patent. If I made a machine with gears and the like you would say that is patentable, but once it becomes software, it is somehow unpatentable?

Regarding video codecs and wireless, I said they would not be as far along without patent, not copyright. These are not the same. As for the merits of your argument, I can say without a doubt that the licensing revenue from patent pools makes evolution in these technologies possible. Show me who's going to do the R&D without that revenue.

My larger point is that the patent coverage on Ars as a whole is anti-patentee, and caters toward the overly simplistic, and commonly held belief that "all software patents are bad," namely because that is the view held by a vast majority of the readership. I believe that the issue is much more complex, and the treatment of the issue could use some more in-depth coverage.

As an example, consider the question of how we would have cellular wireless standards, video codecs, and similar forms of innovation without patents and patent pools. I submit to you that we simply would not have it.

The software patent issue is not complex. The way software works is completely incompatible with the concept of a patent. Full stop. It is however completely able to be copyrighted, and I would be fine with it following those rules as it does now - the copyright debate is a different beast and nowhere near as broken.

As for video codecs and wireless. Both would exist without copyright, that is a ridiculous assertion. I would submit we'd actually be further along in wireless technology and video compression without it.

What, pray tell, makes software completely incompatible with the concept of a patent. If I made a machine with gears and the like you would say that is patentable, but once it becomes software, it is somehow unpatentable?

Regarding video codecs and wireless, I said they would not be as far along without patent, not copyright. These are not the same. As for the merits of your argument, I can say without a doubt that the licensing revenue from patent pools makes evolution in these technologies possible. Show me who's going to do the R&D without that revenue.